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                       RULE OF LAW AND PANDEMIC

                                             Viviana Di Capua*

                        “... public fear might produce unjustified intrusions on civil liberties...”
                                         (SUNSTEIN, C.R. Laws of Fear. Beyond the Precautionary Principle.
                                                    Cambridge: Cambridge University Press, 2009, p. 204)

Abstract: The contribution examines the most significant stages of the Italian strategy for managing the
Covid-19 epidemiological emergency, through the analysis of the main legislative and administrative acts
issued by the Government and by Regional and Local Authorities to face the crisis. The analysis aims to
demonstrate that the powers of the competent Authorities have not been exercised in compliance with the
principle of loyal collaboration, which inspires the relations between center and periphery. On a practical
level, the ordinances issued by the Regional and Local Authorities have imposed more restrictive mitigation
measures in their respective territories, overlapping the provisions of the Central Government and compro-
mising the unitary strategy for managing the crisis.
Keywords: Covid-19 epidemiological emergency, Italian strategy, national, regional and local powers, Covid-
19 and fundamental rights, mitigation and response measures

   Karl Popper in this work The open society and its enemies wrote: “For those who have
tasted the fruit of the tree of knowledge, paradise is lost. […] We cannot return to a feral
condition. But if we want to stay human, there is only one possible way: the road which
leads to open society. We need to proceed towards the unknown, the uncertainty and in-
security, using that little wisdom we have to achieve these goals in the best possible way:
security and freedom.”1
   Without exploring the complexity of his mindset, the words of this distinguished epis-
temologist can only raise a certain interest in the present times, marked by a – more in-
tense – progression of events that have very little ordinary about them, followed by differ-
ent actions which all aim to reduce the negative effects. There is a certain awareness
of the inevitability of the unknown, uncertain and insecure2 situations which are typical

* Viviana Di Capua, Ph.D. Department of Law, University of Naples Federico II, Naples, Italy. Sincere thanks to my
  friends Elizabeth Smith and Paolo Damiano for their help with the translation of the paper.
  POPPER, K. La società aperta e i suoi nemici [The Open Society and its Enemies]. Roma: Armando, ed. 1973, II,
  p. 279. The passage was selected and commented by CUOMO, F. L’etica della libertà e la critica al totalitarismo
  in Karl Popper [The ethics of freedom and the critique of totalitarism in Karl Popper]. Gragnano: Longobardi,
  2000, pp. 37–38.
  For concepts of uncertainty and insecurity one must refer to BAUMANN, Z. La società dell’incertezza [The society
  on uncertainty]. Bologna: il Mulino, 1999; BAUMANN, Z. La società individualizzata [The individualized society].
  Bologna: il Mulino, 2002.

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of human nature and, at the same time, the resilience of an open society needs to be some-
how tested in these situations, specifically measuring the ability of the institutions to guar-
antee, even in extraordinary conditions, security3 and freedom of citizens.
   The state of the health emergency caused by the spread of the Covid-19,4 initially, in
some areas and, then, throughout the entire national territory, has included, in different
ways, the social, economical and institutional fabric,5 and represents a privileged analysis
point of view to test the value of Popper’s statements and, as a consequence, to test if and
to what extent the Italian Government strategy to manage the crisis has been able to also
guarantee security and freedom of its citizens.
   The study will try to retrace the complex exceptional legislative and administrative
framework set up to contrast and contain the spread of the disease, which developed ini-
tially and more powerfully in Italy than in other European and non-European Countries,
causing a high death rate and setting up the conditions for a collapse of the National
Health System. The framework consists of a variety of different acts (Deliberations, De-
crees-Law, Conversion Law, Ministerial Circular, Ministerial Decrees, Decrees of President
of the Council of Ministers, Ordinances, etc.) released by Government institutions in rapid
sequence, which add to the ordinances and Decrees released by Regional and Local rele-
vant Authorities to react promptly to the contamination risk in the areas affected. Specif-
ically, the analysis will focus on Lombardia, Veneto and Campania Regions in order to pic-
ture, through a careful study of the acts released in different moments, three different
management strategies of the disease carried out by the Authorities, taking advantage of
the spaces left open by the National exceptional regulations.
   The target of the study will consist in measuring adequacy and effectiveness of the strat-
egy set up by the Government to contrast and contain the spread of the disease, and also
to focus on possible problems which arose during the various phases.

    For security as a “superprimary value” of the legal system, FERONI, C., MORBIDELLI, G. La sicurezza: un valore
    superprimario [Security: super-primary value]. Percorsi costituzionali. 2008, No. 1, p. 31 ss.; in a similar sense,
    FROSINI, E. Il diritto costituzionale alla sicurezza [The constitutional right to safety]. In: Forum di Quaderni
    Costituzionali Rassegna [online]. [2021-03-09]. Available at: .
    As indicated in the Health Ministry’s Circular of 22 February 2020, No. 5443, the illness is defined “COVID-19”
    (where “CO” stands for corona, “VI” for virus, “D” for disease and “19” indicates the year in which it appeared),
    while the virus, which had been provisionally named “new Coronavirus”, has officially and definitively been
    named, by the International Committee on Taxonomy of Viruses (ICTV), on 11 February 2020, “severe acute res-
    piratory syndrome coronavirus 2” abbreviated to “SARS-CoV-2”. In addition, Directive 2020/739/EU, amending
    Annex III of Directive 2000/54/EC of the European Parliament and of the Council, has included SARS-CoV-2 in
    the list of biological agents that can cause infectious diseases in humans.
    The representation provided by LEONE, G. Coronavirus, sorte del paese e… appalti a sorte [Coronavirus, fate of
    the country and… contracts by lot]. In: [online]. [2021-03-09]. Available at: ,
    Osservatorio Emergenza Covid-19, paper – 5 May 2020, p. 4, has proved emblematic, in which he remarked that
    “the Covid pandemic (…), like a tornado, has caused immense damage to the national economy”. For a reflection
    on the long term effects of the pandemic on an economic, social and institutional level, which demolishes con-
    solidated assets and imposes a reconsideration of all traditional regulating instruments, one must read CHITI,
    E. Questi sono i nodi. Pandemia e strumenti di regolazione: spunti per un dibattito [These are the knots. Pan-
    demic and regulatory tools: points for a debate]. In: laCostituzione [online]. 20. 4. 2020 [2021-03-09]. Available
    at: .

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   On 22 January 2020, a Health Ministry’s Circular with the object “Pneumonia caused by
new coronavirus (2019-nCoV) in China” refers that the City Health Commission of Wuhan,
capital of the Chinese province of Hubei, on the 31 December 2019, informed the World
Health Organization (WHO) of a cluster of pneumonia cases of unknown etiology in the
city of Wuhan, mostly epidemiologically related with the Huanan Seafood market, in the
South of China, well known for wholesale of sea food and livestock.
   After having identified the most common symptoms of the disease – which consist
of temperature, dry cough, sore throat, breathing difficulties – that can appear from
a mild flu like case, up to a much more serious form (especially in patients with chronic
underlying diseases, such as hypertension, diabetes, etc., and the elderly), it followed
with the clarification that on the 9 January 2020, the Chinese Center for Disease Control
and Prevention (CDC) had identified a new coronavirus (2019-nCoV), closely related
to the Severe Acute Respiratory Syndrome (SARS), publically revealing the genome se-
quence. It also stated that, up to 21 January 2020, cases of patients affected by the dis-
ease after travel to Wuhan, had been identified in other areas of China (such as Beijing,
Guangdong and Shanghai), in Thailand, in Japan and in South Korea, and that the Chi-
nese Authorities had issued public health actions in order to contain the spread of the
   Specifically: identification and follow up of close contacts, included health care staff,
a retrospective review of the cluster of patients and the active research of cases made
by the Municipal Health Commission of Wuhan, the closure, environmental sanitation
and disinfection of the Huanan Seafood market, the provision of information on the
virus, the risk of infection and the adoption of biosecurity measures.
   On the basis of the information produced by the European Centre for Disease Pre-
vention and Control (ECDC), which had identified as moderate the risk of introduction
of the infection in Europe though cases imported from infected areas, the document in-
cludes some indications on safety measures to carry out in airports and on the manage-
ment of potential and actual patients in the medical facilities and households (so-called
   The Ministerial Circular of 22 January 2020 can be considered the first national action
which considers the existence of a new diffusive disease, with an unknown aetiology
and abnormal development, as well as a risk of infection, still considered moderate,
caused by a stay in an infected area, and this starts the first forms of preventive care.
This was followed by non-binding acts of almost the same standard, containing some
practical measures to monitor passengers’ health conditions on flights from China
(for example, the filling of the so-called passenger locator cards),6 the definition of a case
in order to be reported, discerning between suspicious cases, likely or confirmed

    Health Ministry’s Circular of 24 January 2020, No. 2265, named “2019-nCov – operative recommendations for
    monitoring the health of passengers on board flights arriving from China”.

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cases,7 the limitation8 and ban on flights from China,9 the management of potential
coronavirus cases on board of ships and on land and of those who have had contact

    Health Ministry’s Circular of 27 January 2020, No. 2302, named “Pneumonia from new coronavirus (2019-nCoV)
    in China”. The definition of “case” or of “suspected case” is a prime question for the management of an epidemi-
    ological emergency, considering that the swab tests, at least during Phase I of the emergency, were only carried
    out on “suspected cases”, recognised as such by the Health Ministry following recommendations from the World
    Health Organization and the European Centre for Disease Prevention and Control. Indeed, in the Health Ministry’s
    Circular No. 1997/2020 three types of cases were identified to carry out swab tests: 1) person with severe acute
    respiratory infection – SARI associated with travel to Wuhan in the 14 days preceding the onset of symptoms or a
    health worker from an environment with patients having severe acute respiratory infections; 2) person with un-
    usual or unexpected clinical course with sudden deterioration; and 3) person with acute respiratory distress syn-
    drome – ARDS of any degree of severity, in the previous 14 days, in “close contact” with a confirmed case of symp-
    tomatic nCov infection (as Covid-19 was defined), or working in a health institution treating patients with nCov
    infections. Following this, with the Health Ministry’s Circular No. 2302/2020 a distinction was made between “sus-
    pected case”, “probable case” and “confirmed case” (this last, defined as such only by the laboratory of the Higher
    Institute of Health) and new means for laboratory diagnostics were identified. In particular, the idea of “suspected
    case” was refined, and did not include any more persons with an unusual or unexpected clinical course, but still
    including health workers. This distinction, even though minimal, was confirmed in the Health Ministry’s Circular
    No. 5443/2020. With the following Circular of 27 February 2020, No. 6337, named “Documents relative to the criteria
    in order to carry out nasopharyngeal swab and diagnostic tests on asymptomatic individuals in the research for
    SARS-CoV-2 infections”, the document was sent to the permanent working group of the Higher Institute of Health,
    which, on the basis of indications from the ECDC on 25 February 2020, considering the (supposedly) low risk of
    transmission in asymptomatic individuals, recommends carrying out swab tests only in the cases of symptomatic
    cases of influenza like illnesses not attributable to other causes and with epidemiological links to areas of sec-
    ondary transmission, cases of ARDS, cases of SARI and suspected cases of Covid-19 (defined according to the
    previous indications). With Circular No. 6360, published on the same day, named “COVID-19. Updates”, the “sus-
    pected case” which requires carrying out a diagnostic test is limited only to persons with acute respiratory infec-
    tions which satisfy at least one of the epidemiological criteria (in the previous 14 days before the onset of the
    symptoms), or close contact with a confirmed or probable case of Covid-19, or have been in an area of alleged
    community transmission. Health workers are no longer taken into consideration. The definition of “suspected
    case” which requires diagnostic testing is again modified in the Health Ministry’s Circular of 9 March 2020, No.
    7922, named “COVID-19. Update on the definition of the case”, where three ideas are put forward, regarding per-
    sons with acute respiratory infections who have been to transmission areas, or who have been in close contact
    with a confirmed case, or who need hospital admission and there are no other etiology which explains the clinical
    case (therefore reintroducing the situation foreseen in Circular No. 1997/2020 and eliminated by Circular No.
    2303/2020). In the Health Ministry’s Circular of 20 March 2020, No. 9774, named “Annulment and Replacement
    of the Ministry of Health Circular no. 0009480 of 19th March 2020 COVID-19: tracing of contacts for health surveil-
    lance and updating of recommendations regarding laboratory diagnosis in the case of SARS-CoV-2 infections”, pro-
    vides tracing of all those who could have been in contact with a confirmed or probable case in the previous 48
    hours preceding onset of symptoms, without providing for the diagnostic test in itself (other than in the case that
    it is part of the defined “suspected case”, or if the symptoms of the illness have developed). Lastly, the Health Min-
    istry’s Circular of 3 April 2020, No. 11715, named “COVID-19 Pandemic – update on the recommendations on the
    diagnostic tests and on the criteria to adopt in deciding on priorities. Update on the recommendations regarding
    laboratory diagnosis”, foresees that priority for diagnostic tests must be given to: patients recovered in hospital
    with SARI; all cases of acute respiratory infections either recovered in hospitals or in nursing homes or in other
    long term care facilities; high risk health workers; workers, even if asymptomatic, in nursing homes and care
    homes for the elderly, persons at risk of developing severe forms of the illness and frail persons, including vul-
    nerable individuals, individuals who are the first to show symptoms of the illness within a closed community in
    order to rapidly identify clusters and guarantee containment measures. Also, where there are the resources avail-
    able, all patients with respiratory infections. Asymptomatic individuals remain excluded.
    Health Ministry’s Provision of 27 January 2020, named “Chinese coronavirus nCoV epidemic: Urgent measures to
    safeguard public health. Ban of all flights arriving from China in the Airports of Ciampino, Roma Urbe, Perugia
    Decree issued by the Health Ministry on 30 January 2020, named “Prevention measures against the new Coron-
    avirus (2019-nCoV)”.

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with a patient,10 the biosecurity measures for university students (or equivalent
courses) returning from the infected areas of China11 and for service and business op-
erators, who for working reasons, have been in contact with the public.12
   At the same time, with the Ordinance of 25 January 2020,13 it was also ordered under
art. 32, of the Law of 23 December 1978, No. 833,14 the Health Ministry orders the enforce-
ment of medical surveillance for passengers flying directly from the areas affected by the
medical emergency and the recruitment of staff designated to control activity and provide
a health response.
   Meanwhile, on 30 January 2020, the World Health Organization (WHO) declares the
Covid-19 epidemic, initially a “Public Health Emergency of International Concern”
(PHEIC)15 and then, considering the level of seriousness and its spread, a pandemic.16

     The Health Ministry’s Circular of 31 January 2020, No. 2993, named “Potential cases of coronavirus (nCoV) and man-
     agement of the same”, where if available, for example, isolation in hospital aboard a ship or, or where not available,
     in a single cabin, of the patient with a temperature, classified as a “contact with risk of infection” according to the
     criteria shown in Annex No. 1 (amongst which: exposure associated with health care, including caring directly for
     nCoV patients or having been in the same environment with nCoV confirmed patients, have travelled with a nCoV
     patient in any form of transport, having shared accommodation with a nCoV patient; specifying that the epidemi-
     ological contact must have occurred within a 14 day period) and, should the test result positive, the disembarkation
     and recovery as quickly as possible, in relation to the state of health, in a hospital for infective diseases.
     Health Ministry’s Circular of 1 February 2020, named “Recommendations for the management of students and
     teachers returning from or leaving for affected areas in China”. These measures were then extended to educa-
     tional services for children and students including upper secondary school, of every nationality from the fol-
     lowing Health Ministry’s Circular of 8 February 2020, No. 4001, named “Update of the Ministerial Circular Prot.
     dated 1. 2.2020 with reference to the recommendations for management of the education system for students on
     their return from high risk cities in China”.
     The Health Ministry’s Circular of 3 February 2020, No. 3190, named “Recommendations for service/shop workers
     having contact with the public”, in which it was considered sufficient to adopt and respect the common pre-
     vention measures for the spreading of respiratory illnesses, and in particular: frequent handwashing, attention
     to the cleanliness of surfaces, avoiding close and prolonged contact with individuals having flu-like symptoms,
     etc. Should a worker, whilst at work, come into contact with an individual who could be defined as a “suspected
     case” referred to in Annex No. 1 of the Health Ministry’s Circular No. 2302/2020, they must immediately contact
     the health services and, whilst awaiting their arrival, they must avoid close contact with the person concerned;
     if available, supply them with a surgical mask, carefully wash their hands, paying particular attention to any
     surface that may have had contact with any bodily fluid (respiratory secretions, urine, faeces) of the individual;
     dispose of any handkerchiefs used by the individual in waterproof bags (which must be disposed of in the in-
     fected material waste bags carried by emergency health workers).
     Named “Prevention measures against the new Coronavirus (2019-nCoV)”.
     Named “Institution of the National Health Service”.
     WHO. Statement on the second meeting of the International Health Regulations (2005) Emergency Committee
     regarding the outbreak of novel coronavirus (2019-nCoV), Geneva, Switzerland, In: World Health Organization
     [online]. 30. 1. 2020 [2021-03-07]. Available at: . The Public Health Emergency of International Concern
     (PHEIC) has been defined in the International Health Regulations (IHR) of 2005 as an extraordinary event which
     can: i) constitute a public health risk to other states through the international spread of disease; ii) potentially
     require a coordinated international response. Furthermore, this definition implies a situation that is: i) serious,
     unusual or unexpected; ii) carries implications for public health beyond the affected state’s national border;
     iii) and may require immediate international action.
     Reference WHO. Director-General’s opening remarks at the media briefing on COVID-19. In: World Health Or-
     ganization [online]. 11. 3. 2020 [2020-03-07]. Available at: .

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VIVIANA DI CAPUA                                                                                               217–251

   The following day, on 31 January, the Government, acting on a proposal made by the
Health Ministry, “considering the need to support the Health Ministry’s and National
Health Service action, also increasing the medical structures and controls at air and land
borders”, declares, for six months, “the state of emergency as a consequence of the health
hazard linked to the outbreak of the diseases arising from transmissible viral agents”, or-
dered under the legislation of Civil Defense, conferring to the Head of the Civil Defense
Department the power to issue orders notwithstanding any current regulations and in ac-
cordance with the principles of legal order.17 Starting from the 3rd February, ordinances
are issued by the Head of the Civil Defence Department in order to coordinate the actions
to manage the emergency.

   Before analyzing the way the Italian institutions have managed the Covid-19 epidemic
emergency, it is necessary to step back and briefly consider the instruments provided by
the national legal system to face health emergencies.
   There is not, at the present time, one unique definition of emergency, nor does the Con-
stitution identify a specific regulation, only generically and marginally considering it in artt.
77, 78, 120 and 126, corresponding to the emergency Decrees, to the declaration of the state
of war, to the power of the Government towards the Regions and Local Authorities in order
to protect legal and economic unity and, lastly, the dismissing of the Regional Council.
   The interpretation of the subject has described it as a sudden difficulty, an unforeseen
circumstance or a situation which requires fast action and that, not being clearly regulated
by current laws, needs to be faced as an exception to the recognized legal system.18 The

     Cfr. art. 7, par. 1, lett. c), and art. 24, par. 1, Legislative Decree 2 January 2018, No. 1, named “Civil Defence Reg-
     ulations”. The announcement of a state of emergency represents, within the civil defence system, a particular
     power that the law confers to the Government for the management of extraordinary events, such as natural
     calamities, catastrophes and disasters, deciding upon duration and territorial extension of the said state of
     emergency. For the coordination of the interventions considered necessary to resolve the situation the Civil De-
     fence participates in the decisions “to be adopted in the absence of current provisions, within the limits and
     means indicated in the resolution of the state of emergency and in respect of all the general principles of the
     legal system and the law of the European Union”. These regulations are issued subject to agreements with the
     Regions and the Provinces affected by the emergency and, in the case that they should waive existing laws, they
     must specify which laws they intend to waive and they must specifically motivate this decision (art. 25, Legisla-
     tive Decree No. 1/2018). For a general overview of the subject, CERULLI IRELLI, G. Principio di legalità e poteri
     straordinari dell’amministrazione [Principle of legality and extraordinary powers of the administration]. Dir.
     pubbl. 2007, No. 2, p. 345 ss.; GNES, M. I limiti del potere d’urgenza [The limits of the urgency power]. Riv. trim.
     dir. pubbl. 2005, No. 3, p. 641 ss.; RAFFIOTTA, E. Norme d’ordinanza. Contributo a una teoria delle ordinanze
     emergenziali come fonti normative [Ordinance rules. Contribution to a theory of emergency ordinances as nor-
     mative sources]. Bologna: Bonomia University Press, 2019.
     FIORITTO, A. L’amministrazione dell’emergenza tra autorità e garanzie [The administration of the emergency
     between authority and guarantees]. Bologna: il Mulino, 2008, p. 12, who specifies further that, “in (..) the lexical
     meaning, the emergency is defined as a sudden difficulty, an unexpected circumstance or as a situation which
     imposes a rapid intervention (..)”. On the theme of the emergency, ANGIOLINI, V. Necessità ed emergenza nel
     diritto pubblico [Necessity and emergency in public law]. Padova: CEDAM, 1986; PINNA, P. L’emergenza nell’or-
     dinamento costituzionale italiano [The emergency in the Italian constitutional order] Milano: Giuffrè, 1988;

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definition clearly transpires both the need for fast action, and also the unsuitability of the
ordinary legal instruments in facing crisis situations, which inevitably shifts attention to
the waiver of ordinary law which often occurs in a regime of exception.
    The main instrument provided by the Constitution to face emergencies is the provisional
exercise of the legislative function by the Government when “extraordinary cases of necessity
and urgency” occur. They are the Decrees-Law, defined by art. 77, par. 2 of the Constitution
as “temporary measures with force of law”, responsibility of the executive branch, which
need to be presented to both chambers of Parliament “the same day” “even if dissolved, are
then specifically called and will meet within 5 days” but that lose effectiveness ex tunc if not
converted into law within sixty days after being published on the Official Journal (par. 3).
Despite the always more frequent use of emergency Decrees (which sometimes might lead
to an actual abuse), the instrument has proved to be very useful during the course of the
years to react, with directness and effectiveness, to events (like earthquakes and in general
natural disasters) which by their very own nature would not have “withstood” the time
needed to issue an ordinary law, because of the necessity and urgency to act to protect rights,
goods and interests, constitutionally guaranteed and threatened by the unforeseen event.
The use of Decree-Law is also protected by serious constitutional guarantees, specifically,
the supervision of Parliament during the process of creation and conversion, in the tempo-
rary nature of their effects (the possible limitation of Constitutional rights and freedom
would be limited to sixty days) and in the judgment of the Constitutional Court.
    Also, there is the national service of the Civil Defence whose aim is to protect life, physical
integrity, goods, settlements, animals and environment from the damages or risk of damages
caused by natural disasters or human activities, and therefore to manage emergencies.19
    The legal system also consider the administrative ordinances of necessity and urgency,
expression of a power of ancient historical derivation, which some administrative Author-
ities may use by virtue of a law, if exceptional circumstances which cannot be managed
in an ordinary way require a fast response to avoid damage to assets and public interest
of particular relevance.20 It refers to acts characterized by their content (or object), whether

     MARAZZITA, G. L’emergenza costituzionale. Definizioni e modelli [The emergency in the Italian constitutional
     order. Notions and models]. Milano: Giuffrè, 2003; RAZZANO, G. L’amministrazione dell’emergenza. Profili cos-
     tituzionali [The emergency administration. Constitutional profiles]. Bari: Cacucci, 2010; CABIDDU, M. A. Ne-
     cessità ed emergenza ai confini dell’ordinamento [Necessity and emergency at the borders of the legal system].
     Amministrare, 2010, p. 167 ss.; CARDONE, A. La “normalizzazione” dell’emergenza. Contributo allo studio del
     potere extra ordinem del governo [The “normalization” of the emergency. Contribution to the study of the Gov-
     ernment's extra-ordinary power]. Torino: Giappichelli, 2011; GIGLIONI, F. Amministrazione dell’emergenza (Ad-
     ministration of the emergency). Enc. dir., Ann., Milano: Giuffrè, 2013, Vol. IV, p. 48 ss.
     Disciplined by Legislative Decree No. 1/2018, named “Civil Defence Regulations”.
     In the grammar of Italian administrative law, the term “ordinance” includes multiple legal deeds, not attributable
     to any one particular category RESCIGNO, G. U. Ordinanza e provvedimenti di necessità e di urgenza. Diritto
     costituzionale e amministrativo [Ordinance and measures of necessity and urgency. Constitutional and admin-
     istrative law]. Noviss. Dig. it. 1976, Vol. XII, p. 89 ss., in part. p. 90; BARTOLOMEI, F. Potere di ordinanza e ordi-
     nanze di necessità [Power of ordinance and ordinances of necessity]. Milano: Giuffrè, 1979, p. 3 ss. Generally, the
     expression includes authoritative measures which impose or forbid or regulate, expressing however a more
     complex paragraph than a simple order. In fact whilst an order acts as though it were a binding deed or result
     of tecnical discretion, the ordinance follows an evaluative process: it is permeated with discretion; MOR-
     BIDELLI, G. Delle ordinanze libere a natura normative [Free ordinance of normative nature]. Dir. Amm. 2016,

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partial or total, not predetermined,21 “so defined by necessity and urgency, because these
are the requirements which legalises their issue”,22 and specifically of the necessary and
urgent ordinances “which highlight a particular relationship with competences of Local
Bodies or Authorities".23
   The rules that provide for them stop at the indication of the assumption, made by the
urgent necessity to act, of the target they must pursue, but never state what the Authority
can order, instead limiting itself to provide authorization to execute, order and forbid any-
thing that at the time seems necessary and essential to achieve the goal.24
   These instruments act like a “valve”25 for the legal system, necessary to face unforeseen
situations which risk threatening the actual system or its goals.26
   The atypical nature of the content, particular feature of these measures, due to the fact
that the Law allows the Administrations to decide which are the right actions, depending
on the nature and strength of the events to be faced, is even clearer considering that they

     No. 1-2, p. 33 ss., p. 33. For a precise analysis of the power of an ordinance, anticipating some bibliographic ref-
     erences which will be referred to further along, read GIANNINI, M. S. Potere di ordinanza e atti necessitati (com-
     mento a Cons. Stato, sez. V, 31 gennaio 1948, n. 76) [Power of ordinance and necessary acts (comment on Cons.
     State, sez. V, 31 genuary 1948, No. 76]. Giur. compl. Cass. civ. 1948, pt. I, p. 388 ss.; CAVALLO PERIN, R. Potere di
     ordinanza e principio di legalità. Le ordinanze amministrative di necessità e di urgenza [Power of ordinance and
     principle of legality. Administrative orders of necessity and urgency]. Milano: Giuffrè, 1990; CAVALLO PERIN, R.
     Il diritto amministrativo e l’emergenza derivante da cause e fattori esterni all’amministrazione [Administrative
     law and emergency arising from causes and factors external to the administration]. In: AIPDA, Annuario 2005.
     Il diritto amministrativo dell’emergenza [2005 Yearbook. The administrative law of the emergency]. Milano: Giuf-
     frè, 2006, p. 31 ss.; CERULLI IRELLI, V. Principio di legalità e poteri straordinari dell’amministrazione [Principle
     of legality and extraordinary powers of the administration].
     CAVALLO PERIN, R. Potere di ordinanza e principio di legalità. Le ordinanze amministrative di necessità e di
     urgenza [Power of ordinance and principle of legality. Administrative orders of necessity and urgency], pp. 5–6.
     Ibid., p. 7, where it was shown that “this duo contributes in the modelling, for itself or with others, of many el-
     ements of Deeds or of Procedures”.
     CAVALLO PERIN, R. Ordinanze [Ordinances]. In: S. Cassese (ed). Dizionario di diritto pubblico [Dictionary of
     Public Law]. Milano: Giuffrè, Vol. IV, 2006, p. 3981 ss., p. 3982.
     RESCIGNO, G. U. Ordinanza e provvedimenti di necessità e di urgenza. Diritto costituzionale e amministrativo
     [Ordinance and measures of necessity and urgency. Constitutional and administrative law], p. 91. According
     CAVALLO PERIN, R. Potere di ordinanza e principio di legalità. Le ordinanze amministrative di necessità e di
     urgenza [Power of ordinance and principle of legality. Administrative orders of necessity and urgency], p. 7–8,
     “this detail is at the same time the most mysterious aspect of the power of the ordinance of necessity and ur-
     gency which the Public Administration holds [..], from which many misunderstandings come about regarding
     the nature and the extension of the derogatory effect of the ordinance of necessity and urgency issued by agen-
     cies of the Public Administration”.
     According to the well-known definition of GIANNINI, M. S. Potere di ordinanza e atti necessitati (commento a
     Cons. Stato, sez. V, 31 gennaio 1948, n. 76) [Power of ordinance and necessary acts (comment on Cons. State, sez.
     V, 31 January 1948, No. 76], in part. p. 389–380, in which it is stated that the real power of an ordinance “is the
     function of a valve available in extreme cases, that is, in non-figurative terms, but judicial terms, is a derogation
     from the statutory reserve principle, predetermined by the same system for exceptional purposes”. Cfr. also by
     the same Author, Lezioni di diritto amministrativo [Lessons of Administrative Law]. Milano: Giuffrè, 1950,
     p. 102, and Diritto amministrativo [Administrative Law], Milano: Giuffrè, 1993, p. 237.
     Fulfilling the function of “protection and maintenance of the system, against critical elements, because unex-
     pected or unforeseeable or in any case unable to be resolved with the current tools available”, as explained by
     BROCCA, M. L’altra amministrazione. Profili strutturali e funzionali del potere di ordinanza [The other admin-
     istration. Structural and functional profiles of the power of ordinance]. Napoli: Editoriale Scientifica, 2012, in
     part. p. XIII.

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are marked as “free” by distinguished interpretations.27 Often facing the need to regulate
unforeseen events, emergency measures are often exceptions to ordinary law, determining
a contrast to the principle of typicality of administrative acts.28
   The Constitutional Court has tried to identify a series of limits to the ordering power,
clarifying in many occasions that the exceptional rapport, “far from leaving a gap in the
administrative activity, finds actual limits in the way it operates in the normative system.”29
Also, it cannot go in contrast with the general principles of the legal system (stated or im-
plicit) and with “the laws of the Constitution which as they represent the cornerstone of
the Legal order, do not allow exceptions not even by ordinary law.”30 On the procedural
legality aspect, it needs to be adequate to face the actual situation which needs to be or-
dered, producing limited effects in time,31 justified clearly “in content, duration and
method of exercising”.32

     MORBIDELLI, G. Delle ordinanze libere a natura normativa [Free ordinances of normative nature]. Dir. amm.,
     2016, Vol. 1-2, p. 33 ss., p. 35.
     As such, as illustrated by GIANNINI, M.S. Diritto amministrativo [Administrative Law], p. 270, “the emergency
     ordinances are administrative procedures which, as they are foreseen by legislation, are legal, but constitute an
     exception regarding the principles of typicality”. He observes however “a tendential escape from the principles
     of legality” with a consequential compromise “the overall stability of the Rule of Law”, FERRARA, R. Emergenza
     e protezione dell’ambiente nella “società del rischio” [Emergency and environmental protection in the “risk soci-
     ety”], p. 3362.
     CAVALLO PERIN, R. Potere di ordinanza e principio di legalità. Le ordinanze amministrative di necessità e di ur-
     genza [Power of ordinance and principle of legality. Administrative orders of necessity and urgency], p. 147, with
     reference to the sentence of the Constitutional Court of 27 May 1961, No. 26. In judicial law, Constitutional Court.
     4 Genuary 1977, No. 4 (par. 3.1), In: Consulta Online Rivista di diritto e giustizia costituzionale [online]. [2021-03-
     07]. Available at: . Constitutional Court. 30 December 1987, No. 617. Riv. giur. amb. 1988,
     p. 113 ss.; Constitutional Court. 28 November 1991, No. 32. Giur. cost. 1991, p. 198; Constitutional Court. 9 Novem-
     ber 1992, No. 418. Foro it. 1993, I, p. 2139; Constitutional Court. 14 Avril 1995, No. 127. Riv. giur. amb. 1997, No. 2,
     p. 258 ss., with comment of MORRONE, A. I poteri di ordinanza contingibili e urgenti: l’integrazione del diritto “ec-
     cezionale” nel sistema delle fonti e dei livelli di governo territoriale [Contingent and urgent ordinance powers: the
     integration of “exceptional” law into the system of sources and levels of territorial government]; lastly, Constitutional
     Court. 7 April 2011, n. 115. Giur. cost., 2011, 2, p. 1581, with comment of CERULLI IRELLI, V. Sindaco legislatore?
     [Legislator Mayor?] e di MORANA, D. La rivincita dell’art. 23 Cost. sulle ordinanze di sicurezza urbana (senza
     bisogno di invocare un principio supremo dello Stato di diritto) [The revenge of art. 23 of the Constitution on urban
     security ordinances (without the need to invoke a supreme principle of the Rule of Law)].
     Constitutional Court. No. 26/1961, par. 3.1. as a matter of law. In the subject matters covered by statutory reserve,
     the admissibility of ordinances with an operative part of the sentence different from the legislative deed issued
     according to the Constitution, while those covered by conditional reserve, the ordinances are legitimate only if
     (and in as much as) the ordinary Law defines punctually (and preliminarily) “the suitable criteria to define the
     discretion of the body to whom power is given”, and therefore, if they remain within these legal boundaries. On
     the limits of power of urgent extraordinary ordinances one should consult the extensive examination carried
     out by CAVALLO PERIN, R. Il diritto amministrativo e l’emergenza derivante da cause e fattori esterni all’am-
     ministrazione [Administrative law and emergency arising from causes and factors external to the administra-
     tion]. In: AIPDA, Annuario 2005. Il diritto amministrativo dell’emergenza [2005 Yearbook. The administrative
     law of the emergency], in part. p. 40 ss.
     Constitutional Court. 2 July 1956, n. 8. Giur. cost. 1956, I, 683 ss., with the comments of CRISAFULLI, V. Ordinanze
     di necessità, interpretazione della Corte e sindacato del giudice comune [Ordinances of necessity, interpretation
     of the Court and review of the common judge] and TREVES, G. La costituzionalità dei provvedimenti amminis-
     trativi di necessità e di urgenza [The constitutionality of administrative measures of necessity and urgency]. In a
     similar sense, Constitutional Court. 22 May 1987, No. 201, In: Consulta Online Rivista di diritto e giustizia cos-
     tituzionale [online]. 22. 5. 1987 [2021-03-07]. Available at: .
     Constitutional Court. No. 127/1995.

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   As part of the power of ordinance, a relevant position is occupied by measures on health
matters, currently provided for by art. 32 of Law No. 833 of 1978, by art. 117 of the Legisla-
tive Decree No. 112 of 199833 and art. 50 of the Legislative Decree No. 267 of 2000: these
acts attribute to the Health Ministry, the President of the Region and the Mayor the power
to issue necessary and urgent measures, respectively, with regard to hygiene, public health
and animal health, and in the cases of health emergencies, depending on the territorial
extent (national, regional or local) of the event. These provisions tend to be similar in con-
tent, even if they refer to a different regulatory field,34 as it is clear from the titles of the
laws of which they are part (one is about the creation of the National Health System while
the other is about the appointment of national administrative functions and tasks to Re-
gions and Local Authorities).
   The health topic, linked to the public hygiene one,35 has always represented “one of the
fields with a traditional and more widely spread application” of “the administrative emer-
gency law, considered as all the legal instruments issued by the Public Administration in
emergency, extraordinary or urgent situations”.36
   During the course of years, the transition from the management of the emergencies to
the management of the risks, largely depending on the introduction of the precautionary
principle in the national legal system, has determined a profound change of the features
of the power of ordinance of the Health Authorities.
   The first phase, which spans from the administrative unification to the Constitution, is
marked by the strong belief in scientific progress and in the possibility of effectively pre-
determining the health and hygiene politics through the Law, typical of a Centralised State.

     Named “Conferal of theadministrative functions and tasks of the State to the Regions and other Local Bodies, in
     implementation of Art. 1 of the Law of 15 March 1997, No. 59”.
     And, for this reason, susceptable to causing the risk of unfortunate overlapping of regulations and procedures
     of the relative Authorities RAFFIOTTA, E. Le ordinanze emergenziali nel diritto comparato [Emergency ordi-
     nances in comparative law]. Rivista AIC. 2017, No. 3, in part. p. 22.
     The regulations of public health and hygiene present diversified subjects, regarding firstly the activities, func-
     tions and means of managing public health, and secondly the safeguarding of the healthiness of the commu-
     nity, in the home and at work, as well as concerning food and drink, control of infectious illnesses and in the
     police veterinary and mortuary contexts. On the evolution of health legislation, AICARDI, N. La sanità [The
     Health Care]. In S. Cassese (ed.). Trattato di diritto amministrativo. Diritto amministrativo speciale [Adminis-
     trative Law Treaty. Special Administrative Law]. Milano: Giuffrè, 2003, Vol. I, p. 633 ss.; ZANOBINI, G. Corso di
     diritto amministrativo [Administrative Law Course]. Milano: Giuffrè, Vol. V, 1959, p. 151 ss.; RABAGLIETTI, G.
     Sanità pubblica [Public Health]. In: Noviss. Dig. it. 1969, Vol. XVI, p. 3488 ss.; SANTINELLO, P. Sanità pubblica
     [Public Health]. Dig. disc. pubbl. 1997, XIII, p. 546 ss. For an analysis of the National Health System in a current
     historical context, PIOGGIA, A. Diritto sanitario e dei servizi sociali [Health and social services law]. Torino: Gi-
     appichelli, II ed., 2017. On the public hygiene sector, IANNOTTA, R. Igiene pubblica [Public Hygiene]. Enc.
     giur. 1989, Vol. XV; FONDERICO, F. L’igiene pubblica [The Public Hygiene]. In: S. Cassese (ed.). Trattato di
     diritto amministrativo. Diritto amministrativo speciale [Administrative Law Treaty. Special Administrative
     Law], p. 711 ss.
     CHITI, M. P. Il rischio sanitario e l’evoluzione dall’amministrazione dell’emergenza all’amministrazione pre-
     cauzionale [The health risk and the evolution from the emergency administration to the precautionary ad-
     ministration]. In: AIPDA, Annuario 2005. Il diritto amministrativo dell’emergenza [2005 Yearbook. The admin-
     istrative law of the emergency]. Milano: Giuffrè, 2006, p. 140 ss., in part. p. 140, where he comments that
     “epidemics, pandemics and health catastrophes are in actual fact recurrent and widespread, such as to as the
     Public Administration for special measures to protect human health and the conditions of the health of the

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In this case “the emergency proves to be as a real exception, manageable by the adminis-
tration of Law”.37
   The second phase, marked by the interest of the Constitutional jurisprudence in the
identification of a series of limits to the powers of ordinance in order to ensure compati-
bility with the Constitution, meanwhile entered in force. Despite many organisational in-
novations – institution of the Regions, of the National Health System and the transferral
of health functions which followed – the traditional emergency concept has not changed.
   The third and last phase corresponds to the statement, both at an International and
a European level, of the precautionary principle which forces Public Authorities to also
assess, prior to a possible action, the potential and irreversible risks of serious damages
to particularly relevant goods and interest.38 The entrance of the principle in addition to
the administrative activity, by effect of the open referral contained in art. 1, par. 1, of the
Law No. 241 of 1990,39 has deeply changed the characteristics of the emergency and the
related management function entrusted to the relevant Public Authority. Among the
changes detected are: the loss of any possible legislative reference for the management of
precautionary power, which as a result becomes undetermined and generic in premises
and content, the measures’ precautionary nature, which makes it necessary for them to
be modified as the initial circumstances change; a full and detailed preliminary activity,
a cost/benefit analysis as a consequence of the decision to not act or to act and, in this
case, the measure’s adequateness and proportionality.
   The most evident consequences are related to the legitimacy aspects of the adminis-
trative action and the intensity of the jurisdictional control: while in fact for the ordinances
of necessity and urgency the Administrative Judge can only make sure the limits set by
the constitutional and administrative jurisprudence are followed, on the contrary, in the
precautionary measures when required, the judicial review touches the proportionality
and adequateness of the measure, developing round the cost/benefit parameter in rela-
tion to the consequences;40 in other words, it extends to administrative discretion.41

     CHITI, M. P. Il rischio sanitario e l’evoluzione dall’amministrazione dell’emergenza all’amministrazione pre-
     cauzionale [The health risk and the evolution from the emergency administration to the precautionary admin-
     istration]. In: AIPDA, Annuario 2005. Il diritto amministrativo dell’emergenza [2005 Yearbook. The administrative
     law of the emergency], p. 144.
     The scientific literature on the principle of precaution is vast. Reference must be made to the studies of SUN-
     STEIN, C. R. Laws of Fear. Beyond the Precautionary Principle. Cambridge: Cambridge University Press, 2009,
     p. 204; SUNSTEIN, C. R. Beyond the Precautionary Principle. U Penn L Rev. 2003, Vol. 151, p. 1003 ss.; VER-
     MEULE, A. Precautionary Principles in Constitutional Law. Journal of Legal Analysis. 2012, Vol. 4, No. 1, p. 181
     ss.; VERMEULE, A. Introduction: Political Risk and Public Law. Journal of Legal Analysis. 2012, Vol. 4, No. 1, p. 1
     ss.; DE LEONARDIS, F. Il principio di precauzione nell’amministrazione del rischio [The precautionary principle
     in the risk management]. Milano: Giuffrè, 2006.
     “New regulations of administrative procedures”. The Law contains the general regulations of administrative pro-
     The profiles have been clearly illustrated by CHITI, M. P. Il rischio sanitario e l’evoluzione dall’amministrazione
     dell’emergenza all’amministrazione precauzionale [The health risk and the evolution from the emergency ad-
     ministration to the precautionary administration]. In: AIPDA, Annuario 2005. Il diritto amministrativo dell’e-
     mergenza [2005 Yearbook. The administrative law of the emergency], p. 152.
     On the topic, see PIRAS, A. Discrezionalità amministrativa [Administrative Discretion]. Enc. Dir. 1964, Vol. XIII,
     p. 66 ss.

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   The consequences on the model of administration are also relevant, in the first place
this was completely dominated by the (State) law, but on the other hand, nowadays, it is,
instead, put first and given the complicated role of making the decisions appropriate to
the dynamism of technical-scientific progress.42
   Art. 32 of the Law No. 833 of 1978, art. 117 of the Legislative Decree No. 112 of 1998
and art. 50 of the Legislative Decree No. 267 of 2000 are expressions of the second
phase, as it appears evident from the extreme general nature of the assumptions to ex-
ercise power (hygiene, public health, animal health or medical emergencies) and for
the relative “splitting up” amongst the many Authorities with competences over these
matters (Health Ministry, President of the Region and Mayor); the necessary and urgent
character of the measures legitimates exceptions.43 Even if this is an expression of the
second phase, the actual exercise of the power of ordinance in order to manage a health
risk or emergency, is guided by the precautionary approach, which implies a full pre-
liminary, accurate and detailed, activity with identification and measurement of the
risk levels, a cost/benefit analysis of acting or not acting, and taken proportional and
adequate measures in its content.

   During the night between 20 and 21 February, the Welfare Councilor of Lombardia Re-
gion informed, through a press release, that a 38 year old and fit manager had been found
positive for Covid-19. Up to that moment the most influent Italian virologist considered
the prevention measures applied sufficient to avoid the spread of the disease on the na-
tional territory.44 The identification of “patient one”, the first Italian officially infected by
the SARS-CoV-2 virus, was possible thanks to the intuition of the anesthetist on duty at
the hospital of Codogno (Lodi district), who requested a nasopharyngeal swab or relevant
diagnosis test, in order to identify the causes of a suspicious pneumonia.45 Despite epi-
demiological investigations, consisting of investigative activity aiming to trace the map
of contacts of the infected patient, the link between “patient one” and China was never

     Again CHITI, M. P. Il rischio sanitario e l’evoluzione dall’amministrazione dell’emergenza all’amministrazione
     precauzionale [The health risk and the evolution from the emergency administration to the precautionary ad-
     ministration]. In: AIPDA, Annuario 2005. Il diritto amministrativo dell’emergenza [2005 Yearbook. The admin-
     istrative law of the emergency], p. 153, warns however that, in this last model, the Administration “has lost a its
     true “centre” following the statement of pluralism and of the administrative system; and where there is the ten-
     dency for technical and independant bodies to prevail both within the community and on a national scale, in
     the logic of “rising” subsidiarity and integration.”
     RAFFIOTTA, E. Le ordinanze emergenziali nel diritto comparato [Emergency ordinances in comparative law],
     p. 22.
     Refer to, for example, the interview with the Director of the Sacco Hospital in Milan, a reference point for infec-
     tive illnesses in Northern Italy, Massimo Galli and TPI: “I was also wrong about the night of patient number
     one.” In: TPI [online]. 11. 5. 2020 [2021-03-10]. Available at: .
     Consult the interview of G. Visetti with Dr. Annalisa Malara, duty anaesthetist at the Hospital of Codogno, Coro-
     navirus, the anaesthetist of Codogno who intuitively diagnosed Mattia’s case: “I thought of the impossible.” In:
     la Repubblica [online]. 6. 3. 2020 [2021-03-09]. Available at: .

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found (a Chinese colleague he had dined with a few nights before tested negative to a na-
sopharyngeal swab) and therefore “patient zero” was never identified.
   During the evening of the same day, in Lombardia, other 14 cases were identified. The
first 5 deaths were recorded in the following two days, while the cases recorded in Lom-
bardia Region rapidly rose to 167, plus 18 in Veneto Region, 18 in Emilia Romagna Region,
4 in Piemonte Region and 3 in Lazio Region (in this last case, they were two Chinese
spouses and an Italian researcher repatriated from Wuhan with special health security
   Having identified an infection cluster on national territory, a rapid series of measures
was released to contain the spread of the infection.
   On 21 February, the Health Ministry, along with the President of Lombardia Region, or-
dered, with an ordinance issued in accordance with art. 32 of the Law No. 833 of 1978 to
manage health emergencies, the first measure intended to stop the outbreak of infection
which had spread to ten towns in the Lodi district, where “patient one” had been identi-
fied.”47 The institution of a “red zone” of the epidemic, with the suspension (to be assessed
daily) of all public events, whether religious, business, commercial, recreational, sport,
educational activities and public transport. The only exception was essential public utility
   The following 23 February, having identified two clusters in the Veneto Region (Vò and
Mira), the Health Ministry issued an ordinance in agreement (this time) with the President
of the Veneto Region, suspending in all the regional territory until 1 May, all events, nursery
schools, schools and Universities, museums and all other cultural locations’ activities and
school trips.48
   The identification of “patient one” marks the beginning of the pandemic on the national
territory, providing the necessary conditions to plan a specific managing strategy,49 which,
not having an actual plan to apply, will eventually prove to be easier from a communica-
tion point of view.50 The definition Phase I was chosen to cover the period between the
declaration of the emergency state on 31 January 2020, marked by the adoption of meas-
ures which would greatly limit fundamental rights and liberties, with the aim to contain

     Refer to the press statement issued by the Civil Defence Department on 24 February 2020.
     Health Ministry Decree in agreement with the President of the Lombardia Region of 21 February 2020, No. 2230,
     named “Urgent measures regarding the containment and management of the COVID-19 epidemiological emer-
     gency. Lombardia Region”.
     Health Ministry Decree in agreement with the President of the Veneto Region of 23 February 2020, named “Ur-
     gent measures regarding the containment and management of the COVID-19 epidemiological emergency. Veneto
     It is necessary to draw attention to the existence of a National plan for the preparation and answer to a flu pan-
     demic, drawn up on the basis of recommendations issued by the World Health Organization in 2005 and used
     to counteract the spread of swine flu from the virus A/H1N1 in 2009. The document has apparently not been
     updated since 2006. In actual fact, even if sufficient to counteract epidemics characterised by limited and cir-
     cumscribed clusters, was not apparently sufficient to counteract a serious and virulent epidemic like that of
     Covid-19, to such an extent that, as can be seen, there was no mention of it either in the early states or in the
     Health Ministry’s Decrees.
     In these terms, GNES, M. Le misure nazionali di contenimento dell’epidemia da Covid-19 [National contain-
     ment measures from the Covid-19 epidemic]. Giorn. dir. amm. 2020, 3, p. 282 ss., in part. 289.

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